Are collateral sanctions premised on conduct or conviction? The case of abortion doctors.

• Author: Chin, Gabriel J.

INTRODUCTION

Persons subject to collateral sanctions--disabilities that occur automatically upon conviction--often claim that those sections constitute unfair punishment. The standard response is that collateral sanctions are not punishment at all; rather, they are civil regulatory measures designed to prevent undue risk by proven lawbreakers. (1) The categorical classification of these disabilities is critical to their constitutionality. If a court classifies a sanction as a criminal penalty rather than a regulatory measure, constitutional provisions applicable to criminal prosecution are triggered. (2) This will not necessarily be a problem if the sanction exists at the time of conviction and is made known to the defendant at the time of plea and sentence. (3) If the sanction, however, is deemed a criminal penalty, then the Ex Post Facto Clause may apply, meaning that new sanctions cannot be imposed retroactively on those convicted before the law was passed. (4) In addition, because guilty pleas must be made knowingly, voluntarily, and intelligently, (5) guilty pleas may be held invalid if the sanctions are deemed criminal penalties but the defendant was not advised of them at the time of pleading. (6)

In principle, collateral sanctions can serve legitimate civil purposes. Few parents would want those convicted of serious violence against a child to be able to obtain employment giving them access to small children; similarly, it makes perfect sense to keep firearms out of the hands of those who engage in unlawful, violent activities. (7) In neither case is the motive punishment, but rather the protection of public safety. (8) Yet, it is not always clear that the primary legislative motivation for a collateral sanction is civil rather than punitive, nor is it always a simple matter to discern the primary motivation. This is particularly true because traditional punishments such as imprisonment and execution are designed in part for the non-punitive purpose of protecting the public, similar to civil regulations. Some consequences traditionally regarded as "civil," such as loss of benefits following conviction of a crime, can be imposed for the purpose of punishment. (9)

This Article proposes that the single most important piece of evidence in the determination of whether a sanction is criminal or civil is whether the sanction is imposed based on conviction or conduct. (10) Assume, for example, a statute prohibits those who have performed an unlawful medical procedure from holding a license as a physician. If the disability is imposed on all who engage in the conduct, whether or not a criminal conviction, civil judgment, administrative finding, or admission by the suspect proves it, there is strong evidence that the punishment has a civil, regulatory purpose. Despite arguments as to the statute's substance, a person denied an opportunity on the basis of conduct (independent of how that conduct is proven) cannot claim that the denial of the license constitutes further punishment. If, however, the statute allows those who have engaged in the conduct, but not been convicted to hold a license, it becomes more probable that the legislature did not regard the underlying conduct as sufficient to warrant disqualification. Instead, conviction is the determinative factor. In such cases, it is difficult to regard the disability as anything other than part of the criminal justice process.

This Article explores the problem by examining the 1898 United States Supreme Court case of Hawker v. New York. (11) Hawker was the first major case dealing with the distinction between disadvantage based on conduct of conviction, and it remains the most important doctrinal support for the broad authority of states to impose disabilities based on conviction that are not imposed on those who engage in the underlying conduct. (12) This Article also examines whether there are civil, regulatory justifications for imposing collateral sanctions exclusively on those convicted of crimes, rather than those who are found to have engaged in the conduct. (13) The Article concludes that this explanation fails to account for the actual characteristics of typical administrative systems. (14)

1. HAWKER V. NEW YORK

   1. The Hawker Decision

      Hawker v. New York is the seminal case for the idea that sanctions imposed exclusively on those convicted of crimes can nevertheless be "civil." (15) Hawker's importance was recognized at the time it was decided; it was immediately the subject of articles and casenotes in the Green Bag, and the Yale, Harvard, and Pennsylvania Law Reviews, (16) and since has been cited frequently by commentators. (17) Hawker has been relied upon numerous times by the United States Supreme Court in support of the proposition that felons can be constitutionality disqualified from various programs. (18)

      Benjamin Hawker was convicted of felony abortion in 1878. (19) Decades later, the New York Legislature passed a law providing that anyone practicing medicine after conviction of a felony was guilty of a misdemeanor. (20) Hawker was subsequently charged with practicing medicine after having been convicted of a felony. (21) Hawker argued that increasing the penalty for his 1878 conviction by criminalizing his practice of medicine, after his sentence had been fully served, violated the Ex Post Facto Clause of the United States Constitution. (22) The Appellate Division of the New York Supreme Court agreed, but the New York Court of Appeals and United States Supreme Court did not. (23)

      Several close votes in the ongoing litigation suggest the difficulty of the issue; there were significant dissenting opinions at every stage of the appeal. Hawker had been convicted in the Court of General Sessions, New York County, after a trial on stipulated facts. (24) The Appellate Division voted four to one to reverse. (25) Three of the seven judges of the Court of Appeals voted to reverse the Appellate Division and reinstate the conviction. (26) Two judges dissented, voting to affirm dismissal. (27) The controlling votes were cast by two judges who concurred in reversing the Appellate Division decision on a very narrow basis. (28) Their vote to reinstate the conviction was "solely on the ground that the record contains no evidence that the defendant at the time of his conviction, or at any other time, was a physician." (29) The concurring judges had a point; a defendant could hardly complain that he was wrongfully denied the right to practice a profession of which he was not, in fact, a member. (30) Thus, the two dissenters and two concurrers constituted a majority of the Court of Appeals in support of the proposition that the law would have been ex post facto as applied to someone who otherwise would have enjoyed the right to practice medicine. (31)

      The United States Supreme Court found the case challenging, as it was reargued before it was ultimately decided. (32) The ultimate decision was split--Justice Brewer wrote for himself and Justices Brown, Fuller, Gray, Shiras, and White, but Justice Harlan dissented, joined by Justices McKenna and Peckham. (33) Thus, of the twenty-two judges participating in the case as it made its way through the system, eleven rejected Hawker's argument, (34) but eleven agreed with it.

      While the Supreme Court majority represented the final decision on the issue, Justice Brewer's opinion expressed the arguments on both sides so evenhandedly that it suggests indecision:

      On the one hand, it is said that defendant was tried, convicted, and sentenced for a criminal offense. He suffered the punishment pronounced. The legislature has no power to thereafter add to that punishment. The right to practice medicine is a valuable property right. To deprive a man of it is in the nature of punishment, and, after the defendant has once fully atoned for his offense, a statute imposing this additional penalty is one simply increasing the punishment for the offense, and is ex post facto. (35) Thus, the Supreme Court recognized the constitutional principle that the penalty for an offense may not be increased after the fact, and that denying the right to practice medicine solely because of a conviction looked like punishment. (36) It also looked like regulation:

      On the other, it is insisted that, within the acknowledged reach of the police power, a State may prescribe the qualifications of one engaged in any business so directly affecting the lives and health of the people as the practice of medicine. It may require both qualifications of learning and of good character, and, if it deems that one who has violated the criminal laws of the State is not possessed of sufficient good character, it can deny to such a one the right to practise [sic] medicine, and, further, it may make the record of a conviction conclusive evidence of the fact of the violation of the criminal law and of the absence of the requisite good character. (37) This argument is correct as well. It seems obvious that states can regulate the practice of medicine and exclude those of bad moral character from positions of trust and responsibility.

      The majority characterized its decision as requiring a choice between these two principles--punishment or regulation--and chose the latter. (38) "The physician is one whose relations to life and health are of the most intimate character. It is fitting, not merely that he should possess a knowledge of diseases and their remedies, but also that he should be one who may safely be trusted to apply those remedies." (39) The Court concluded that criminal behavior was related to reliability, and upheld Hawker's conviction:

      It is not open to doubt that the commission of crime--the violation of the penal laws of a state--has some relation to the question of character. It is not, as a rule, the good people who commit crime.... So, if the legislature enacts that one who has been convicted of a crime shall no longer engage in the practice of...